M.B. v. K.G. Date:, 2015 BCPC 284

Citation: M.B. v. K.G. Date: 20150821 2015 BCPC 0284 File No: F38118 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Family Court IN THE MATTER OF THE FAMILY LAW ACT , S.B.C. 2011 c. 25 BETWEEN: M.B. APPLICANT AND: K.G. RESPONDENT ORDER OF THE HONOURABLE JUDGE J.W. JARDINE Counsel for the Applicant: R. Roy, Duty Counsel

Counsel for the Respondent: A. Prkacin, Duty Counsel Place of Hearing: Surrey , B.C. Date of Hearing: August 21, 2015 Date of Judgment: August 21, 2015 [ 1 ] THE COURT : This is an urgent emergency hearing pursuant to Rule 5(8) of the Family Rules of the Provincial Court for the Province of British Columbia.

I have agreed to undertake this hearing which commenced ex parte this morning at about 11:40 and in which, at the conclusion of standing the matter down, Madam Registrar telephoned to M.B. to advise him to attend court this afternoon so as to avoid hearing only one side. [ 2 ] I have now had the benefit of hearing from a number of witnesses in circumstances which are particularly trying both for the witnesses, the litigants and for the court. [ 3 ] M.B. is 38 years of age. He is a mechanic by trade; he is a journeyman.

He is working regularly and he is working as a journeyman collision technician working in the Port Kells area of Surrey. [ 4 ] K.G. is 25 years of age and is, at present, in the role, and has been since (date), in the role of primary caregiver to the son of both M.B. and K.G.; T. [ 5 ] I am told that T. was born (d.o.b.), his name is T.A.B., which would make him at this point five months old.

It is because of his tender years that I have permitted this hearing to proceed today and that I have permitted the parties to present the case. [ 6 ] The case for M.B. is dependent upon what he talks about as concerns about drug issues which he has then approached the Ministry of Children and Family Development about.

He has spoken to three different personnel in the Ministry and he has expressed his concern with respect to drug use and alcohol abuse by his spouse from whom he is estranged as of last night. [ 7 ] As a matter of fact and the applicable law, I am satisfied that the parties live in the Province of British Columbia. I am satisfied that K.G. is currently resident at an address that she says is (address).

M.B. gave the address as (address), the same apartment number, but he has now moved to (address) in Surrey, British Columbia, and resident there with his parents. [ 8 ] I have heard no substantive evidence over the course of this hearing of drug abuse by K.G.

I have heard of the two of them using cocaine approximately a year ago, I have heard of K.G. using alcohol and smoking marihuana in the year of 2015. [ 9 ] I am advised, and I accept from the evidence, that T. was initially breastfed, that he is now in a position where he is being bottle fed, and T. is currently, it looks like, dead to the world in the arms of his maternal grandma in the back of the courtroom. [ 10 ] That said, what I have is I have no evidence of parenting incapacity in K.G. I have concerns expressed, opinions expressed by M.B. about other people coming into the suite.

I have concerns expressed by M.B. of K.G. making poor choices with respect to who she is travelling with, particularly the person with whom she was trimming marihuana a short period ago, and I have a five-dollar bill containing white powder with a hair wrap, identified as being K.G.'s by M.B., found two weeks ago. Although, if I look at it, it is about ten days, it is either the 11th or 12th of August.

Is that such that I should make a material change to T.'s primary residence? [ 11 ] The onus is on M.B. on the balance of probabilities at this hearing, and I am not satisfied that he has provided a case that I should, at this point, change the circumstances of this little tyke. [ 12 ] There are significant issues to be addressed if I accept the evidence of, and I have no foundation not to accept the evidence, of M.M.G. because she is of the view that her daughter needs help.

It may not be help related specifically to drug abuse, but it is help that she requires in terms of her overall emotional and mental health. [ 13 ] I have similar evidence coming from Ms.

S., who has addressed a number of occasions where K.G. was not careful and prudent about consumption and she has made observation. [ 14 ] I, as well, have the evidence of B.M.B. that she was able to see the five-dollar bill with white powder and that she has had conversations with K.G. about use of drugs, including marihuana, around T. [ 15 ] If I had direct evidence that K.G. was consuming, smoking marihuana, in his presence, or using cocaine in his presence, I would immediately place T. with his father, but I do not have that evidence, and in the absence of that evidence, T. will continue to reside with his mom in the short-term. [ 16 ] That is an interim order without prejudice to M.B. to apply for primary residence of T. [ 17 ] I am not going to deal either with guardianship, because you are presumed guardians under the Family Law Act .

The Family Law Act provides, in respect of mothers and fathers who are cohabiting at the time of the birth, that each of them are guardians, so that is a presumption as a matter of law. [ 18 ] I am not going to deal with and address parenting responsibilities in any formal order at this time, but the most significant order is that there shall be no removal of T.A.B. from the Lower Mainland of the Province of British Columbia until further order of the court.

And for definition, Madam Registrar, the Lower Mainland is defined as West Vancouver to the northwest, the Pacific Ocean in the form of Georgia Strait to the west, the North Shore Mountains to the north, the American border to the south and the confluence of the Fraser River at Hope to the east. So he shall not be removed from the Lower Mainland until further order of the court.

[ 19 ] On an interim, without prejudice basis, primary residence shall be with Mom. There shall be such reasonable and generous parenting time as may be agreed between the parties for M.B. to have T. with him at his parents' house and I will provide specified access in that he may have T. on Saturdays from 10:00 a.m. to 6:00 p.m. and Sundays from 10:00 a.m. to 6:00 p.m., so that he may exercise parenting time with him. [ 20 ] What are your work hours? [ 21 ] M.B.: I work 8:00 to 4:30, Monday to -- sorry, Your Honour, I work 8:00 to 4:30 Monday to Friday. [ 22 ] THE COURT: All right.

You shall also see T. on Wednesdays between the hours of 4:00 p.m. and 8:00 p.m. That will commence tomorrow, Saturday, August 22nd, 2015, and that regimen will continue as a parenting time

schedule until further order of the court on each Saturday, Sunday and Wednesday. And you will note that I use the term "there shall be such reasonable and generous parenting time as can be agreed to by the parties," and then I have gone on to specify those dates. [ 23 ] If you access Dr. Joan Kelly's website, I think you will see that for a child of T.'s age it is important that there not be any separation from either one of you for longer than 48 hours because each separation beyond that time provides for a feeling of abandonment in the child.

They need to smell you, feel you and hear you. [ 24 ] The one thing that came through this afternoon is that this is a child well-loved by all in the families. There were tears, there was anger.

There is certainly a need in both of you to get some legal advice and to understand what is going on because you are, neither of you, in a position to understand what you have started with. [ 25 ] The only thing I can do is try to preserve the status quo and to see whether or not the two of you, with the assistance of your extended family members, can do something in the best interests of the son who you share. [ 26 ] Those are my reasons. (ORDER CONCLUDED)